[Federal Register Volume 72, Number 147 (Wednesday, August 1, 2007)]
[Rules and Regulations]
[Pages 41940-41946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-14872]


-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 22, 27 and 101

[ET Docket No. 00-258; WT Docket No. 02-353; DA 07-1120]


Service Rules for Advanced Wireless Services in the 1.7 GHz and 
2.1 GHz Bands

AGENCY: Federal Communications Commission.

ACTION: Final rule; interpretations and general waiver.

-----------------------------------------------------------------------

SUMMARY: The Wireless Telecommunications Bureau sets forth details of 
the duties and responsibilities of the clearinghouses that will 
administer the Commission's cost-sharing plan under the incumbent 
relocation procedures for the 2110-2200 MHz band. We also address 
several matters raised by commenters and issue interpretations and a 
general waiver that are intended to avoid confusion and unnecessary 
burdens.

DATES: The interpretations and general waiver are effective August 1, 
2007.

FOR FURTHER INFORMATION CONTACT: Jennifer Mock, Broadband Division, 
Wireless Telecommunications Bureau at (202) 418-2483 or via the 
Internet at [email protected].

SUPPLEMENTARY INFORMATION: In the AWS Relocation and Cost Sharing 
Report and Order,\1\ 71 FR 29818, (May 24, 2006), the Commission 
established procedures for the relocation of Broadband Radio Service 
(BRS) operations from the 2150-2160/62 MHz band and Microwave Service 
(FS) operations in the 2.1 GHz band, and adopted cost sharing rules to 
identify the reimbursement obligations for Advanced Wireless Service 
(AWS) and Mobile Satellite Service (MSS) entrants benefiting from the 
relocation of incumbent FS and/or BRS operations. The Commission also 
delegated authority to the Wireless Telecommunications Bureau (WTB or 
Bureau) to select one or more entities for the creation and management 
of a neutral, not-for-profit clearinghouse that would facilitate cost 
sharing among AWS and MSS entrants benefiting from the relocation of FS 
incumbents in the 2110-2150 MHz and 2160-2200 MHz bands and AWS 
entrants benefiting from the relocation of BRS incumbents in the 2150-
60/62 MHz bands.\2\ Mobile Satellite Service (MSS) operators are 
required to participate in the clearinghouse for Ancillary Terrestrial 
Component (ATC) base stations, see e.g., 47 CFR 101.82(d), and may 
elect to submit claims for reimbursement to the AWS clearinghouse for 
FS links relocated due to interference from the MSS space-to-Earth 
operations.\3\ The Commission stated that selection would be based on 
criteria established by the Bureau, and that the Bureau would publicly 
announce the criteria and solicit proposals from qualified parties.\4\ 
The Commission also instructed the Bureau to solicit public comment on 
all proposals submitted and, after selecting the clearinghouse 
administrator(s), to announce the effective date of the cost sharing 
rules, including the filing requirements for reimbursement claims and 
relocation cost estimates.\5\ In doing so, the Commission noted that 
the Bureau could select more than one clearinghouse.\6\
---------------------------------------------------------------------------

    \1\ Amendment of Part 2 of the Commission's Rules to Allocate 
Spectrum Below 3 GHz for Mobile and Fixed Service to Support the 
Introduction of New Advanced Wireless Services, including Third 
Generation Wireless Systems, ET Docket No. 00-258, Service Rules for 
Advances Wireless Services in the 1.7 GHz and 2.1 GHz Bands, WT 
Docket No. 02-353, Ninth Report and Order and Order, 21 FCC Rcd 4473 
(2006) (recon. pending) (AWS Relocation and Cost Sharing Report and 
Order).
    \2\ See AWS Relocation and Cost Sharing Report and Order at 
para. 106-107. The Commission made no determination at the time as 
to whether a clearinghouse must provide administration for both FS 
and BRS-related cost sharing. See id. at n.374. However, the 
Commission recognized the efficiencies in a clearinghouse 
administering the cost sharing processes for the relocation of both 
FS and BRS incumbents in the subject bands. See id. at para. 106.
    \3\ See AWS Relocation and Cost Sharing Report and Order at 
para. 93-94.
    \4\ See id. at para. 83, 107.
    \5\ See id. at para. 83, 107. Claims for reimbursement are 
limited to relocation expenses incurred on or after the date when 
the first AWS license is issued in the relevant AWS band (start 
date). If a clearinghouse is not selected by that date, claims for 
reimbursement and notices of operation for activities that occurred 
after the start date but prior to the clearinghouse selection must 
be submitted to the clearinghouse within thirty calendar days of the 
selection date. See 47 CFR 27.1166.
    \6\ See 47 CFR 27.1178. See also AWS Relocation and Cost Sharing 
Report and Order at para. 107 (``we delegate to WTB the authority to 
select one or more entities to create and administer a neutral, not-
for-profit clearinghouse'').
---------------------------------------------------------------------------

    1. By public notice released on June 15, 2006 (Clearinghouse PN), 
71 FR 38162 (July 5, 2006), the Bureau invited proposals from entities 
interested in serving as a neutral, not-for-profit clearinghouse 
responsible for facilitating cost sharing among entrants benefiting 
from the relocation of incumbent licensees in the 2.1 GHz bands.\7\ The 
Clearinghouse PN also sought comment on whether more than one 
clearinghouse would be feasible, and required certifications that the 
entity would be able and willing to work with other clearinghouses if 
WTB selected more than one, as well as a certification that the entity 
is a not-for-profit organization and will retain its not-for-profit 
status during the term of its operations. We also sought comment on 
whether proposals that offer to administer cost sharing for both FS and 
BRS relocations are preferable to proposals that seek to administer 
cost sharing for only one of these relocation processes. We received 
two proposals and each proposed to administer cost sharing for both FS 
and BRS relocations.\8\ Five parties filed

[[Page 41941]]

comments related to those proposals, and PCIA filed reply comments.\9\ 
As noted in the Qualification PN,\10\ two commenters specifically 
supported designating PCIA as a clearinghouse\11\ and one commenter 
specifically supported selecting CTIA.\12\ Two commenters specifically 
supported designating both PCIA and CTIA as clearinghouses and none of 
the commenters opposed the selection of multiple clearinghouse 
administrators.\13\
---------------------------------------------------------------------------

    \7\ See Wireless Telecommunications Bureau Opens Filing Window 
for Proposals to Develop and Manage the Clearinghouse that will 
Administer the Relocation Cost Sharing Plan for Licensees in the 2.1 
GHz Bands, Public Notice, 21 FCC Rcd 6616 (WTB 2006) (Clearinghouse 
PN). The notice invited any entity interested in serving as a 
clearinghouse to submit a business plan detailing how it would 
perform the functions of a clearinghouse, including the following 
elements: a description of the entity proposing to be a 
clearinghouse and its qualifications; information regarding 
financial data, including a business plan that addresses how the 
entity intends to raise start-up funds and how much the entity plans 
to charge for individual transactions; whether the entity is 
interested in serving as a clearinghouse for FS relocations, BRS 
relocations, or both; a detailed description of accounting methods; 
a description of how the entity intends to remain impartial and how 
it will prevent any conflicts of interest; a description of how the 
entity intends to address concerns about confidentiality and a 
description of security measures the entity will take to safeguard 
submitted information; a description of how the entity intends to 
resolve disputes between parties; and an assessment of how long it 
would take the entity to become operational. Id.
    \8\ See CTIA--The Wireless Association[supreg] Clearinghouse 
Plan, filed July 17, 2006 (CTIA Plan); Clearinghouse Proposal of 
PCIA--The Wireless Infrastructure Association, filed July 17, 2006 
(PCIA Plan).
    \9\ Comments were filed by Keller and Heckman LLP (Keller and 
Heckman), Association for Maximum Service Television Inc. (MSTV), 
Sprint Nextel Corporation (Sprint Nextel), T-Mobile USA, Inc. (T-
Mobile), and The Wireless Communications Association International, 
Inc. (WCA). PCIA filed reply comments.
    \10\ See Wireless Telecommunications Bureau Finds CTIA and PCIA 
Qualified to Administer the Relocation Cost-Sharing Plan For 
Licensees in the 2.1 GHz Bands, Public Notice, DA 06-1984 (rel. 
October 4, 2006) (Qualification PN).
    \11\ See Qualification PN at 1, citing Keller and Heckman 
comments and MSTV comments.
    \12\ See Qualification PN at 2, citing T-Mobile comments.
    \13\ See Qualification PN at 2, citing Sprint Nextel comments at 
2-3 and WCA comments at 2-3.
---------------------------------------------------------------------------

    2. On October 4, 2006, the Bureau concluded that the benefits of 
having two or more clearinghouses outweigh any disadvantages because 
offering participants a choice increases the incentive for all 
clearinghouses to operate in an efficient manner, thus benefiting the 
consumers of these services.\14\ We also found CTIA and PCIA, the two 
entities that filed proposals, qualified to serve as clearinghouse 
administrators, and we advised them to begin preparing their 
clearinghouse operations.\15\ As part of establishing the criteria for 
clearinghouses, the Bureau also stated that it would issue a subsequent 
Order setting forth details of the clearinghouses' duties and 
responsibilities.\16\
---------------------------------------------------------------------------

    \14\ See Qualification PN at 2.
    \15\ Id.
    \16\ Id.
---------------------------------------------------------------------------

    3. Unless the context requires otherwise in the paragraphs below 
and for convenience only, we refer to the ``FCC,'' the ``Bureau'' and 
``WTB'' interchangeably. Also, for brevity, we refer to ``clearinghouse 
administrator(s)'' as the ``clearinghouse(s),'' and our references to 
AWS include MSS/ATC.

A. Duties and Responsibilities of the Clearinghouses

1. Scope; Representations and Acknowledgments
    4. As a preliminary matter, we emphasize that the duties and 
responsibilities of the clearinghouses are set forth chiefly in the 
Commission's rules and policies adopted in the AWS Relocation and Cost 
Sharing Report and Order. To the extent permitted under our delegated 
authority, the instant Order clarifies the Commission's cost-sharing 
rules and policies, including the duties and responsibilities of the 
clearinghouses delineated therein. In accordance with the Commission's 
directive and delegation to the Bureau of authority to establish 
criteria for, and to select one or more, clearinghouse(s), we set forth 
details of the clearinghouses' duties and responsibilities below.
    5. In the Qualification PN, the Bureau found CTIA and PCIA 
qualified to serve as clearinghouses after reviewing each entity's 
overall plan and the responsive record, but the Bureau did not thereby 
rule that all provisions of each plan were in accordance with the 
Commission's rules and policies. Rather, the Bureau relied on each 
entity's material representations regarding its organization, 
qualifications, start-up financing, accounting methods, commitment to 
provide non-discriminatory and impartial services, security measures to 
protect confidential information, and willingness and capability to 
cooperate with other clearinghouses in the coordination and sharing of 
information. Except for these material representations, we are aware 
that both plans and their projected implementation may need to be 
modified at some time(s) during the course of the administration of the 
cost-sharing plan. As such, we do not believe it is necessary to 
require either PCIA or CTIA to submit a revised plan to include these 
administrative details, at this juncture.
    6. Each clearinghouse will administer the cost-sharing plan by, 
inter alia, determining the cost-sharing obligations of AWS and MSS/ATC 
entities for the relocation of fixed microwave service (FS) incumbents 
from the 2110-2150 MHz and the 2160-2200 MHz bands \17\ and the cost 
sharing obligations of AWS entities for the relocation of BRS 
incumbents from the 2150-2160/62 MHz band.\18\ Given the purpose of 
establishing a private, industry-based cost sharing plan, CTIA and PCIA 
are each advised that it is responsible for its acts and omissions and 
that the Commission and its employees, agents, and representatives are 
not responsible or liable for the actions or inaction of a 
clearinghouse. Additionally, CTIA and PCIA each must ensure that 
neither it nor any affiliated entity is a party to any memorandum of 
understanding or agreement with the FCC or other governmental entities 
that would interfere with or prohibit it from performing its duties 
hereunder.
---------------------------------------------------------------------------

    \17\ See 47 CFR 27.1162.
    \18\ See 47 CFR 27.1178.
---------------------------------------------------------------------------

2. Non-Discrimination and Impartiality
    7. CTIA and PCIA must provide clearinghouse services on a non-
discriminatory, impartial basis.\19\ Specifically, if CTIA or PCIA has 
a direct affiliation with a class of relocators, licensees, operators, 
or other entities that provide services or products to clearinghouse 
users, the relationship must not affect the manner in which CTIA or 
PCIA performs clearinghouse services and the treatment of all 
relocators, licensees, or operators must be non-discriminatory. CTIA 
and PCIA may only refuse to provide clearinghouse services for good 
cause and must do so as soon as is practicable after receiving the 
request for service.
---------------------------------------------------------------------------

    \19\ CTIA will establish an Advisory Panel made up of entities 
from the various affected services, i.e., BRS, FS, AWS, and MSS, to 
provide policy guidance to the clearinghouse and ensure that parties 
affected by the cost-sharing and relocation processes have an 
adequate say in the mechanics of the operations. See CTIA Plan at 2. 
PCIA plans to establish the PCIA AWS Clearinghouse as a non-profit 
subsidiary with its own by-laws and Board of Directors. PCIA, as the 
incorporator, will select the initial Board of Directors and the 
Board will establish the general policies including dispute-
resolution policies and will examine those policies from time to 
time to ensure that they are effective but will play no role in the 
actual dispute resolution process, which will be handled by the PCIA 
AWS Clearinghouse staff and dispute resolution experts. See PCIA 
Plan at 10, 15. The PCIA Plan includes further details by reference 
to the PCIA PCS Microwave Clearinghouse. ``To ensure fairness, any 
PCS company that either provides funding or pays a transaction fee 
becomes a member of the PCIA Microwave Clearinghouse. Membership 
benefits include participation in the election of the board of 
directors, who set policy around technical and procedural issues 
associated with relocation cost-sharing.'' PCIA Plan, Exhib. B at 2. 
See also PCIA Reply Comments at 2 (``PCIA is committed to working 
with all affected constituencies to ensure that the Commission's 
relocation cost-sharing rules are implemented in a smooth and 
efficient manner, on a competitive cost-effective basis that will 
benefit all affected interests'').
---------------------------------------------------------------------------

3. Multiple Clearinghouses; Data Exchange and Related Matters
    8. To be qualified, CTIA and PCIA each had to certify that it would 
be able and willing to work with each other and other clearinghouses 
that may be selected by the FCC in the future. Cooperation among the 
clearinghouses includes, among other things, exchanging clearinghouse 
data. As a general matter, the clearinghouses must exchange 
clearinghouse data in a secure and timely manner as necessary to ensure 
that: (1) No clearinghouse participant is required to provide

[[Page 41942]]

notices or other information relative to a given link or system to more 
than one clearinghouse; and (2) each clearinghouse has access to the 
data required to perform its duties. See, e.g., 47 CFR 27.1168 and 
27.1184. In the event a clearinghouse makes an error in the shared 
data, the erring clearinghouse shall be solely responsible for 
correcting the shared-data error as soon as is practicable.
    9. The record reflects that CTIA and PCIA disagree as to certain 
details of the data exchange (and certain operational or business 
matters related to the disputed details of the data exchange).\20\ 
Although the scope of this disagreement has narrowed over the past 
several months, CTIA and PCIA appear to have reached an impasse.\21\ 
Accordingly, to move the cost-sharing process forward, we conclude that 
the Bureau must set forth additional details that will govern data 
exchange between the clearinghouses in the absence of a written 
agreement between CTIA and PCIA.
---------------------------------------------------------------------------

    \20\ CTIA and PCIA reported their disagreement in October 2006 
and the Bureau met with them several times. CTIA and PCIA also held 
several private meetings at which verbal and written proposals were 
exchanged in an attempt to reach an agreement. See, e.g., CTIA Ex 
Parte, filed Oct. 19, 2006; PCIA Ex Parte, filed Oct. 20, 2006.
    \21\ See, e.g., CTIA Ex Parte, filed Jan. 19, 2007, at 2-3 
(stating that FCC should reject PCIA's latest proposal and that 
significant differences exist between the clearinghouses); PCIA Ex 
Parte, filed Dec. 29, 2006 (describing the disagreement with CTIA 
and stating that PCIA intends to continue advocating for its 
approach).
---------------------------------------------------------------------------

    10. Registration data. CTIA avers that a clearinghouse should only 
be required to exchange registration data for a given relocation when 
an entity that shares in the cost of that relocation has paid-in-full 
and selected the other clearinghouse to administer its downstream 
reimbursement rights.\22\ PCIA counters that the clearinghouses should 
exchange all registration data in real time so each clearinghouse has 
all of the data necessary to assist customers at any stage of the cost-
sharing process.\23\ CTIA responds that its proposal merely limits the 
exchange of registration data and emphasizes that its approach would 
not impede a party from entering a contract to receive assistance from 
a particular clearinghouse at any time.\24\
---------------------------------------------------------------------------

    \22\ See CTIA Ex Parte, filed Jan. 5, 2007, at 1; CTIA Ex Parte 
filed Dec. 21, 2006, at 1. CTIA also notes that the entity receiving 
a reimbursement is the entity contracting with and paying the 
clearinghouse. See CTIA Ex Parte, filed Jan. 19, 2007, Attachment at 
1.
    \23\ PCIA Ex Parte, filed Dec. 21, 2006, at 1 (``[e]ach AWS 
licensee is subject to the cost-sharing rules and thus, should be 
entitled to assistance from the clearinghouse that it selects at any 
stage of the cost-sharing process.''). See also PCIA Ex Parte, filed 
Dec. 29, 2006 (``PCIA disagrees with CTIA's proposal to allow a 
participant to elect a clearinghouse only after it has cleared 
certain hurdles.'').
    \24\ See, e.g., CTIA Ex Parte, filed Jan. 19, 2007, Attachment 
at 2 n.1, citing CTIA Ex Parte, filed Jan. 5, 2007, at 1 (``[t]here 
exists no impediment to a party receiving access to assistance in 
advance of transferring link registration data {between the 
clearinghouses]'').
---------------------------------------------------------------------------

    11. We find CTIA's distinction unpersuasive. If a party elects to 
contract with a clearinghouse, the subject clearinghouse will need 
access to the relevant registration data in order to provide meaningful 
assistance to the party.\25\ In this connection, we will not second 
guess PCIA's assessment of the market, based on its experience 
administering the PCS Microwave Clearinghouse, that participants will 
seek assistance from a clearinghouse before they have reimbursement 
rights.\26\ CTIA further contends that requiring the clearinghouses to 
exchange registration data will limit competitive opportunities because 
``for the clearinghouses to be competitive, there must be some 
differentiation in the product offerings and services provided.''\27\ 
It is our view that competition between the clearinghouses should be 
based on price, speed, and quality of service; \28\ competition based 
on one clearinghouse's superior access to data submitted by licensees 
would tend to hamper or eliminate competition.
---------------------------------------------------------------------------

    \25\ We note that CTIA and PCIA have elected to use a fee 
structure under which they will be compensated only when their 
customers have received reimbursement. We have no quarrel with this 
approach but find that the timing of the payments to the 
clearinghouses should not be a determining factor in our decision on 
when registration data must be exchanged given the Commission has 
not dictated a payment scheme.
    \26\ See, e.g., PCIA Ex Parte, filed Jan. 26, 2007, at 2 
(stating that it is not unusual for a cost sharing participant to 
require assistance from a clearinghouse when the particpant first 
enters the cost-sharing process. PCIA explains that assistance, 
among other things, involves providing the participant with a better 
understanding of the FCC's cost-sharing plan, the participant's role 
in the process, and the basis for its obligations. PCIA also notes 
that the clearinghouse also serves as a body of knowledge regarding 
cost-sharing procedures and rules and that the clearinghouse serves 
as the first-level of dispute resolution. Id. at 2-3, citing Ninth 
Report and Order, 21 FCC Rcd at 4510, 4532 para. 68, 122.
    \27\ See, e.g., CTIA Ex Parte, filed Jan. 19, 2007, Attachment 
at 2.
    \28\ See PCIA Ex Parte, filed Jan. 26, 2007, at 4.
---------------------------------------------------------------------------

    12. Based on our administrative experience generally and 
considering that CTIA and PCIA reached an impasse on this issue after 
several months of negotiation, we are concerned that requiring the 
clearinghouses to exchange registration data selectively at the time a 
contract is established with a customer will risk opening a door to 
disputes between the clearinghouses.\29\ As such, we believe that 
establishing a bright-line process, under which the clearinghouses 
promptly exchange registration data for each relocation, will reduce 
the risk of confusion or disputes between the clearinghouses and among 
cost-sharing participants. Furthermore, promptly exchanging data for 
all registrations also provides an additional safeguard against data 
loss because both clearinghouses will have complete and current 
data.\30\
---------------------------------------------------------------------------

    \29\ CTIA claims that its proposal mirrors the process used for 
Wireless Local Numbering Portability (WLNP). See CTIA Ex Parte, 
filed Jan 19, 2007, at 2. (CTIA states that the Commission did not 
require sharing of all data between carriers to effectuate a change 
in carrier; ``[r]ather, customers were required to make a valid 
request of their contracted carrier that they desired to port their 
number to a new carrier.'' Id. at n.3, citing http://www.fcc.gov/cgb/NumberPortability/welcome.html##FAQS.) We note that the cited 
webpage actually states that ``[c]onsumers should contact their 
prospective new carrier, who will start the porting process. The new 
carrier will first confirm the consumer's identity and then make a 
porting request of the old carrier.'' Moreover, WLNP is not 
analogous to the AWS cost-sharing plan because WLNP requests are 
initiated by consumers voluntarily and expressly for the purpose of 
contracting with a new carrier whereas most of the data filed with 
the AWS clearinghouses is mandatory, either prior to operation or to 
preserve reimbursement rights under the cost-sharing plan. See also 
PCIA Ex Parte, filed Jan. 26, 2007, at 4.
    \30\ We emphasize that nothing in this Order prohibits the 
clearinghouses from reaching an agreement that revises the scope or 
schedule of the data exchange, assuming their agreement is 
consistent with our rules, because our concerns regarding disputes 
would be sufficiently addressed if both clearinghouses have agreed 
to such revisions. See para. 8, supra.
---------------------------------------------------------------------------

    13. Cost-sharing notices. PCIA proposes that each clearinghouse 
should only issue notices of reimbursement obligations (cost-sharing 
notices) to its own customers (i.e., communicate only with its 
customers) \31\ while CTIA proposes that each clearinghouse should only 
issue cost-sharing notices on behalf of its own customers to any AWS 
licensee (which could include communications to another clearinghouse's 
customers).\32\ PCIA also proposed that each clearinghouse should 
exchange, i.e., copy, the other on all cost-sharing notices, as an 
additional check and courtesy, though it subsequently withdrew this 
request.\33\ CTIA counters that clearinghouses ``are not to `represent' 
parties in disputes'' and that clearinghouses are not created ``to 
recheck the administration of cost-sharing notifications by other 
clearinghouses.'' \34\ PCIA responds that

[[Page 41943]]

it does not suggest that a clearinghouse ``represents'' a party in a 
dispute, and that a clearinghouse's assistance \35\ can resolve most 
disputes with an explanation of the cost-sharing rules and formula, 
which are objective and precise, thereby avoiding any danger of a 
clearinghouse favoring one participant over another.\36\ Finally, CTIA 
and PCIA ask us to clarify that cost-sharing notices sent by electronic 
mail satisfy the requirement that such notices be in writing.\37\
---------------------------------------------------------------------------

    \31\ PCIA Ex Parte, filed Jan. 11, 2007, at 1.
    \32\ See CTIA Ex Parte, filed Dec. 21, 2006, Attachment at 8.
    \33\ See PCIA Ex Parte, filed Jan. 26, 2007, at 4.
    \34\ CTIA Ex Parte, filed Jan. 19, 2007, at 2. CTIA requests 
that the Commission reject PCIA's (subsequently withdrawn) proposal 
that the clearinghouses provide courtesy copies of cost-sharing 
notifications. Id. at 2-3.
    \35\ See note 26, supra.
    \36\ See PCIA Ex Parte, filed Jan. 26, 2007, at 3.
    \37\ See CTIA Ex Parte, filed Dec. 7, 2006, at 1; PCIA Ex Parte, 
filed Dec. 21, 2006, at 2.
---------------------------------------------------------------------------

    14. We agree with CTIA that each clearinghouse should identify 
cost-sharing obligations and issue the notices of reimbursement for 
obligations owed to its customers to give effect to the market choice 
by each entity--relocators and downstream cost-sharers.\38\ Under 
PCIA's proposal, by comparison, clearinghouse selections made by the 
relocator and/or the first or second cost-sharers could be negated by a 
later cost-sharer's selection of a different clearinghouse. Though we 
agree with PCIA that a clearinghouse does not merely notify 
participants of reimbursements due,\39\ this is undeniably a core 
function of the clearinghouses, and we agree with CTIA that each 
participant's selection should be honored through the date of the 
sunset of the cost-sharing plan. We recognize that, in some situations, 
a clearinghouse will be issuing/sending cost-sharing notices (for 
reimbursement obligations owed to its customers) to customers of the 
other clearinghouse. Finally, we clarify as a general matter that cost-
sharing notices sent by electronic mail satisfy the requirement in 
Section 27.1170 that such notices be in writing.
---------------------------------------------------------------------------

    \38\ See CTIA Ex Parte, filed Dec. 21, 2006, Attachment at 8.
    \39\ See PCIA Ex Parte, filed Jan. 26, 2007, at 2.
---------------------------------------------------------------------------

    15. We further believe that clearinghouses cannot compete and 
cannot fully serve their customers if they do not possess complete 
information. Because a clearinghouse may send a notice on behalf of its 
own customer to a customer of the other clearinghouse, the second 
clearinghouse needs to be informed of the contents of the cost-sharing 
notice in order to complete its records. We believe that this can most 
readily be accomplished by requiring each clearinghouse to copy the 
other clearinghouse on all cost-sharing notices because this method 
will be more convenient for clearinghouse participants. Under CTIA's 
proposal, the second clearinghouse only would receive this information 
if its customer communicates the contents of any notices the 
participant receives. We believe this would place an unnecessary burden 
on clearinghouse participants, particularly when it should be 
relatively simple for the clearinghouses to exchange copies of cost-
sharing notices electronically. This exchange will ensure that the 
clearinghouses use the same data and allows for early resolution of any 
mistakes or disagreements.
    16. Site-notice data. CTIA asks us to clarify that Sec.  27.1170's 
requirement to file site data ``with the clearinghouse'' is a 
requirement to file such data with both clearinghouses given that we 
have selected two clearinghouses.\40\ PCIA opposes CTIA's request \41\ 
and urges us to clarify that by filing a site notice with a particular 
clearinghouse, the filer is thereby selecting that clearinghouse's 
services including assistance for any cost-sharing obligations that may 
be triggered by the site notice and administration of any reimbursement 
rights that may arise in the future.
---------------------------------------------------------------------------

    \40\ See CTIA Ex Parte, filed Dec. 7, 2007, at 2, quoting 47 CFR 
27.1170. ``Inasmuch as the FCC has authorized two clearinghouses * * 
* the rule is ambiguous as to whether filing with one clearinghouse 
is sufficient * * * .'' Id., CTIA Ex Parte.
    \41\ See PCIA Ex Parte, filed Dec. 21, 2006, at 2.
---------------------------------------------------------------------------

    17. We decline both requests for clarification. We find no 
ambiguity in Sec.  27.1170's requirement to file with a clearinghouse; 
nor is the Commission's intention made ambiguous by WTB's selection of 
multiple clearinghouses after the rule was adopted in the AWS 
Relocation and Cost Sharing Report and Order. Indeed, the AWS 
Relocation and Cost Sharing Report and Order makes clear that the 
Commission envisioned that the Bureau might select multiple 
clearinghouses.\42\
---------------------------------------------------------------------------

    \42\ See, e.g., 47 CFR 27.1162 (WTB will select one or more 
entities to operate as a * * * clearinghouse(s).'' See also 47 CFR 
27.1166(a) (``[t]o obtain reimbursement, an AWS relocator * * * must 
submit documentation * * * to the clearinghouse * * * .'').
---------------------------------------------------------------------------

    18. Regarding PCIA's request to clarify that participants select 
their clearinghouse by filing site notices, we agree that each 
stakeholder should have a choice of which clearinghouse to use--
independent of other filers' choices relative to a given 
relocation.\43\ Indeed, although CTIA and PCIA disagree as to timing, 
CTIA also ``advocates permitting participants to switch their 
clearinghouse at any time.'' \44\ In this connection, we clarify that 
merely filing a site notice with a clearinghouse does not form a 
contract between the filer and the clearinghouse under the Commission's 
Rules, though a clearinghouse is free to offer its services to the 
participant and to present a contract.\45\ We need not provide 
additional details in this Order because the formation of contracts is 
generally a matter of state and local law. However, we note that the 
record reflects that CTIA and PCIA agree that it is a simple matter to 
add a column for participants to designate its clearinghouse when 
filing site notices.\46\
---------------------------------------------------------------------------

    \43\ See PCIA Ex Parte, filed Dec. 21, 2006, at 3.
    \44\ See CTIA Ex Parte, filed Jan. 19, 2007, Attachment at 2.
    \45\ We understand that all or most site notices (as well as 
registrations) will be filed online.
    \46\ See PCIA Ex Parte, filed Jan. 26, 2007, at 3; CTIA Ex 
Parte, filed Jan. 19, 2007, Attachment at 3.
---------------------------------------------------------------------------

    19. Finally, CTIA and PCIA agree that there is no need to require 
site notices to include the polarization and emission designator of the 
relevant station because this data is not needed for clearinghouses to 
determine cost-sharing obligations.\47\ CTIA's and PCIA's point is well 
taken, though modifying Sec.  27.1170 to eliminate this data collection 
is beyond the scope of the Bureau's delegated authority. Nonetheless, 
given that both clearinghouses state that requiring new entrants to 
submit this data is unnecessary to administer the cost-sharing plan, we 
find that good cause exists for waiving the requirement that all site 
notices include this data in the first instance.\48\ Accordingly, new 
entrants will be required to submit the polarization and/or emission 
designator of a given station to a clearinghouse only upon request.
---------------------------------------------------------------------------

    \47\ See CTIA Ex Parte, filed Dec. 7, 2006, at 2; PCIA Ex Parte, 
filed Dec. 21, 2006, at 2.
    \48\ See 47 CFR 1.3 (any provision of the rules may be waived by 
the Commission on its own motion for good cause shown).
---------------------------------------------------------------------------

    20. Operational matters. Clearinghouses must exchange registration, 
site-notice data, and cost-sharing notices, electronically at least 
once per business day (if a clearinghouse has no new data it shall so 
indicate) and such data exchange shall include, but is not limited to, 
both the registration data required under 47 CFR 27.1166 and 1182, and 
the site-notice data required by and copies of cost-sharing notices 
issued under 47 CFR 27.1170 and 27.1186. We direct CTIA and PCIA, 
within ten (10) calendar days of the release of the instant Order, to 
establish the exact technical format of these required data exchanges 
and to report jointly to the Bureau that such an agreement has been

[[Page 41944]]

reached.\49\ The Bureau expressly reserves the right to revisit this 
matter in the future, if the public interest so requires.
---------------------------------------------------------------------------

    \49\ We note that CTIA and PCIA have already agreed upon the 
specific data format and structure to be included in the exchange of 
site-notice data. See CTIA Ex Parte, filed October 19, 2006.
---------------------------------------------------------------------------

4. Confidential (Sensitive Commercial) Information
    21. With respect to the issue of maintaining the confidentiality of 
information, both PCIA and CTIA assert that they will collect and 
disseminate only that information which is essential to the performance 
of the clearinghouse functions and will execute confidentiality 
agreements with all participating entities. Such procedures adequately 
ensure the necessary confidentiality. We continue to believe that 
designating multiple clearinghouses is the appropriate approach and 
believe that the safeguards instituted by both PCIA and CTIA will 
adequately protect participants from the inadvertent release of any 
confidential information. We reserve the right, however, to review at 
any time, the safeguards instituted by both clearinghouses to protect 
the confidentiality of certain information. Should breach of 
confidentiality issues develop, we will take the appropriate steps to 
rectify the situation.
5. Dispute Resolution
    22. The Wireless Communications Association International (WCA) 
emphasizes in comments filed in response to the Clearinghouse PN that 
the role of the clearinghouses is limited to administration of cost 
sharing among the AWS and MSS licensees who will benefit from the 
relocation of BRS and other incumbents in the 2.1 GHz band.\50\ Put 
differently, WCA avers that the clearinghouses do not administer the 
BRS relocation rules. We are unaware of any claim by CTIA, PCIA, or 
other commenters that suggest that the clearinghouses will administer 
BRS relocation. As such, we note that there does not appear to be any 
dispute on this point.
---------------------------------------------------------------------------

    \50\ See WCA comments at 3 (the process of moving BRS incumbents 
in the 2.1 GHz band, including the reimbursement of displaced BRS 
incumbents for their relocation costs, is a separate process from 
the allocation of responsibility for those costs among multiple AWS 
licensees who benefit from the relocation).
---------------------------------------------------------------------------

    23. We also note that the Commission's rules provide that 
``disputes arising out of the cost sharing plan, such as disputes over 
the amount of reimbursement required, must be brought in the first 
instance to the clearinghouse for resolution.\51\ To the extent that 
disputes cannot be so resolved, the clearinghouse shall encourage the 
parties to use expedited Alternative Dispute Resolution (ADR) 
procedures, such as binding arbitration, mediation, or other ADR 
techniques. To the extent that disputes cannot be resolved using ADR 
and one or all parties seek to bring the dispute to the FCC for 
resolution, the clearinghouse shall cooperate with the parties and the 
FCC in attending any status conference(s) called by the staff and in 
producing whatever reports or records that are necessary for FCC 
resolution of the dispute.\52\ The initial FCC point of contact is: 
Chief, Broadband Division, Wireless Telecommunications Bureau, FCC. In 
the event a mistake is made by a clearinghouse, it shall be responsible 
for correcting the mistake as part of any dispute resolution.
---------------------------------------------------------------------------

    \51\ See 47 CFR 27.1172 and 27.1188 (emphasis added). See also 
47 CFR 27.1178 (the clearinghouse(s) will administer the cost-
sharing plan by inter alia, determining the cost sharing obligation 
of AWS entities for the relocation of BRS incumbents from the 2150-
2162 MHz band).
    \52\ We note that CTIA and PCIA are each required to follow the 
conditions and terms of any separate agreement (MOU) concerning the 
resolution of interference complaints that it may have with the 
Commission.
---------------------------------------------------------------------------

6. Term; Suspension or Termination
    24. The FCC anticipates that, once selected, a clearinghouse will 
continue its operation until after the sunset date for all relevant AWS 
bands. However, the FCC's selection of CTIA or PCIA may be terminated 
by the FCC for cause at any time, upon sixty (60) days written notice, 
or suspended for up to 90 days, upon ten (10) days written notice. 
Should the FCC give notice of termination due to a breach or violation, 
the subject clearinghouse will have sixty (60) days from the date 
notice is effective to cure such breach or violation. Should the FCC 
give notice of suspension due to a breach or violation, the subject 
clearinghouse will have ten (10) days from the date the notice is 
effective to cure such breach or violation. A breach or violation is a 
failure of a clearinghouse to perform its duties and responsibilities 
in accordance with the Commission's rules and policies and/or the 
instant Order. A clearinghouse also may terminate its service after 
ninety (90) days written notification to the FCC; however, this 
provision does not absolve the clearinghouse of any private contractual 
obligations. Notifications required by this paragraph must be provided 
by Certified Mail--Return Receipt Requested. However, changes 
associated with rule amendments or decisions adopted by the FCC will be 
effective on the same date that the rule amendments and/or FCC 
decisions are effective and we advise CTIA and PCIA that a petition for 
reconsideration of the AWS Relocation and Cost Sharing Report and Order 
is pending before the FCC in ET Docket No. 00-258 and WT Docket No. 02-
353. Nothing in the instant Order limits or otherwise prejudices the 
Commission's actions in that proceeding(s) and we reserve the 
discretion to add or delete clearinghouse selections at a later date if 
circumstances indicate that such action is warranted.
7. No Assignment or Transfer; Notice of Impairment
    25. The FCC's clearinghouse selections, i.e., the selections of 
CTIA and PCIA, may not be sold, assigned, or transferred to any party 
without the prior written approval of the FCC. Except as explicitly 
provided herein, the instant Order does not provide and shall not be 
construed to provide any third party with any remedy, claim, liability, 
reimbursement, cause of action or other right or privilege. In 
addition, CTIA and PCIA must agree to report to the FCC, within thirty 
(30) days of an occurrence, of any matters that could reasonably be 
expected to impair its ability to perform the duties authorized under 
this Agreement, including, but not limited to, a filing for bankruptcy 
or any legal or administrative proceeding that may bear upon CTIA's or 
PCIA's ability to perform the duties of a clearinghouse under the 
Commission's rules and policies or the instant Order.
8. Activity Reports and Special Reports to the FCC
    26. As noted above, we are aware that both plans and their 
projected implementation may need to be modified at some time(s) during 
the course of the administration of the cost-sharing plan. In this 
connection, we find it appropriate to monitor both PCIA's and CTIA's 
implementation of their plans and require that both parties submit 
reports to the Commission at six-month intervals. The first report will 
be due on July 31, 2007 (covering the period from the release date of 
the instant Order through June 30, 2007), and every six months 
thereafter, e.g., the second report will cover July 1, 2007, through 
December 31, 2007, and will be due on January 31, 2008. The reports 
must include an update on the number of links relocated, the amounts 
paid to relocate these links, updated cost and revenue projections, and 
any adjustments to existing fee structures. We also reserve the right 
at any time to

[[Page 41945]]

inspect the records of or require additional information or reports 
from CTIA and/or PCIA.

 B. Requests for Clarification

1. Definition of Triggering ``Entity'' Under the Cost-sharing Formula
    27. CTIA and PCIA request a clarification that--for a given 
relocated link--a triggering ``entity'' is a ``license,'' not a 
``licensee'' \53\ and, based on discussions with stakeholders, CTIA 
states that this is the way that carriers would prefer to have the 
matter handled.\54\ CTIA notes that parties sought clarification of 
this matter previously and avers that the Commission's response leaves 
the matter ambiguous.\55\
---------------------------------------------------------------------------

    \53\ See CTIA Ex Parte, filed Dec. 7, 2006, at 2; PCIA Ex Parte, 
filed Dec. 21, 2006, at 2.
    \54\ Id., CTIA Ex Parte.
    \55\ Id., CTIA Ex Parte, citing AWS Relocation and Cost Sharing 
Report and Order.
---------------------------------------------------------------------------

    28. In the AWS Relocation and Cost Sharing Report and Order, the 
Commission addressed a similar proposal \56\ by noting that the cost-
sharing formula already explicitly states that the pro rata 
reimbursement formula is based on the number of entities that would 
have interfered with the link. Accordingly, the Commission found that 
the need for a clarification had not been demonstrated in the record 
before it.\57\ Given this procedural history, we note that the deadline 
for petitions for reconsideration of the AWS Relocation and Cost 
Sharing Report and Order was June 23, 2006,\58\ and that the requested 
clarification is beyond the scope of the authority that the Commission 
delegated to the Bureau to select clearinghouses.\59\ Therefore, we 
decline to clarify the rule as requested herein. Regarding CTIA's 
statement that carriers would prefer to share costs on a per license 
basis, we note that the cost-sharing obligations established by the 
Commission's cost-sharing plan merely serves as defaults. As in the PCS 
cost sharing rules, parties remain free to enter into private cost-
sharing arrangements that alter some or all of these default 
obligations.\60\
---------------------------------------------------------------------------

    \56\ AWS Relocation and Cost Sharing Report and Order, 21 FCC 
Rcd at 4511-12 para. 71 and n.244, citing T-Mobile's and PCIA's 
comments in response to the Fifth Notice in ET Docket No. 00-258. 
(T-Mobile sought a ruling that a new entrant may only trigger a cost 
sharing obligation for a relocated link only once per license, 
regardless of the size of the license. PCIA stated that numerous 
disputes arose as to why larger area licensees did not trigger an 
obligation for each BTA where sites were in the proximity box and 
urged the Commission to affirm a ``one license--one trigger rule.'' 
Id., n.244.
    \57\ AWS Relocation and Cost Sharing Report and Order, 21 FCC 
Rcd at 4516-17 para. 80, citing 47 CFR 24.243 (PCS cost-sharing 
formula). See also 47 CFR 27.1164 and 27.1180 (AWS cost-sharing 
formula for FS and BRS relocations, respectively).
    \58\ The AWS Relocation and Cost Sharing Report and Order was 
published in the Federal Register on May 24, 2006 (71 FR 29818) and 
the deadline for filing petitions for reconsideration or 
clarification was thirty-days thereafter. See 47 CFR 1.429(d).
    \59\ See 47 CFR 27.1162 and 27.1178. See also 47 CFR 1.429(a) 
(``[w]here the action was taken by the Commission, the petition will 
be acted on by the Commission'').
    \60\ See AWS Relocation and Cost Sharing Report and Order, 21 
FCC Rcd at 4509-4510, 4531 para. 67, 123.
---------------------------------------------------------------------------

2. BAS in the 2025-2110 MHz Band
    29. The Association for Maximum Service Television (MSTV) notes in 
comments filed in response to the Clearinghouse PN that ``first-in-
time'' TV Broadcast Auxiliary operations will continue to operate in 
the portion of the spectrum from 2025 to 2110 MHz (adjacent to the 
2110-2025 band).\61\ MSTV urges that all clearinghouses fully inform 
all new adjacent channel AWS licensees of their responsibility to 
protect ``first-in-time'' primary adjacent channel operations. MSTV 
states that this practice will ensure that all parties are fully aware 
of their responsibilities with regard to the protection of adjacent 
channel operations.\62\ MSTV notes that PCIA has pledged to work 
closely with it to ensure that adjacent channel TV broadcast auxiliary 
operations are taken into account and MSTV has pledged to work 
similarly with all clearinghouses.\63\ Although not within the scope of 
the Commission's cost-sharing plan, we applaud and encourage these 
private efforts to inform licensees of their obligations under the 
Commission's rules.
---------------------------------------------------------------------------

    \61\ MSTV comments at 1-2.
    \62\ Id.
    \63\ Id. at 2.
---------------------------------------------------------------------------

3. Procedures for Federal Coordination and Relocation
    30. T-Mobile USA, Inc. (T-Mobile), in comments filed in response to 
the Clearinghouse PN, asks the Commission and NTIA to clarify the 
procedures for AWS deployments in the 1.7 GHz band.\64\ T-Mobile notes 
that the Commission will be able to grant licenses prior to the 
relocation of federal government operations in the 1710-1755 MHz band 
and that the Commission and NTIA have released procedures that must be 
followed when AWS licensees deploy services in this band.\65\ T-Mobile 
states that these procedures require new licensees to contact the 
appropriate federal agency to obtain the necessary information to 
conduct an interference analysis and that the agency must provide the 
necessary information within 30 days of the request.\66\ However, T-
Mobile contends that the current procedures do not specify how the 
information is to be shared, for example, whether it must be in 
electronic format and what file format should be used.\67\ As such, T-
Mobile states that it would like the affected federal agencies to begin 
to create a ready database of microwave system information to 
facilitate the exchange of data as soon as possible.\68\ Additionally, 
T-Mobile is concerned that Federal agencies will not be prepared to 
respond to the quantity of requests they may receive at the close of 
the auction.\69\ Accordingly, T-Mobile requests that the Commission and 
NTIA also clarify the repercussions for federal agencies that do not 
provide the necessary information within the 30-day time limit they 
have established.\70\
---------------------------------------------------------------------------

    \64\ T-Mobile comments at 4-5.
    \65\ The Federal Communications Commission and the National 
Telecommunications and Information Administration--Coordination 
Procedures in the 1710-1755 MHz Band, public notice 21 FCC Rcd 4730 
(2006).
    \66\ T-Mobile comments at 4.
    \67\ Id. at 5.
    \68\ Id. at 4-5.
    \69\ Id.
    \70\ Id.
---------------------------------------------------------------------------

    31. We find that T-Mobile's request is beyond the scope of the 
Clearinghouse PN and raises matters that are not within the scope of 
the Commission's directive and delegation to the Bureau of authority to 
select one or more clearinghouse(s) and to set forth details of the 
clearinghouses' duties and responsibilities. Accordingly, we do not 
reach T-Mobile's request herein.

C. Thirty-day Deadline for Submitting Claims and Notices to 
Clearinghouse for Activities That Occurred Between November 29, 2006 
and the Clearinghouse ``Selection Date''

    32. Claims for reimbursement are limited to relocation expenses 
incurred on or after November 29, 2006 (the ``start date'') \71\ and, 
to obtain reimbursement under the cost-sharing plan, an AWS relocator 
or MSS/ATC relocator must submit documentation of the relocation 
agreement to the clearinghouse within 30 calendar days of the date a 
relocation agreement is signed with an incumbent.\72\ In addition, 
prior to initiating operations for a newly constructed site or modified 
existing site, an AWS entity or MSS/ATC entity is required to file a 
notice containing site-specific data with the

[[Page 41946]]

clearinghouse.\73\ The clearinghouse filing requirements do not take 
effect until a clearinghouse is selected.\74\ Registrations and notices 
for activities that occurred after the start date but prior to the 
clearinghouse selection date must be submitted to a clearinghouse 
within 30 calendar days of the selection date.\75\ We clarify that the 
selection date for calculating the initial 30-day deadline under these 
rules will be the date that the instant Order, or a summary thereof, is 
published in the Federal Register, i.e., August 1, 2007. We further 
clarify that any registrations or notices submitted to a clearinghouse 
on or after November 29, 2006, need not be resubmitted merely because a 
clearinghouse received them prior to the selection date.\76\
---------------------------------------------------------------------------

    \71\ See 47 CFR 27.1166(a), defining the ``start date'' as the 
date when the first AWS license is issued in the relevant AWS band. 
See also Wireless Telecommunications Bureau Grants Advanced Wireless 
Service Licenses, public notice, 21 FCC Rcd 13883 (2006) (announcing 
the grant of the first AWS licenses on November 29, 2006).
    \72\ See 47 CFR 27.1166(a)(1) and 27.1182(a).
    \73\ See 47 CFR 27.1170 and 27.1186.
    \74\ See 47 CFR 27.1162, 27.1166(a) and 27.1178.
    \75\ Id.
    \76\ The Bureau found CTIA and PCIA qualified to serve as 
clearinghouses on October 4, 2006. See note 15, supra and 
accompanying text.
---------------------------------------------------------------------------

II. Ordering Clauses

    33. It is ordered that CTIA--The Wireless Association[supreg] 
(CTIA) and PCIA--The Wireless Infrastructure Association (PCIA) are 
each selected pursuant to 47 CFR 27.1162 and 27.1178, to serve as a 
neutral, not-for-profit clearinghouse to administer the Commission's 
cost-sharing plan in accordance with the Commission's rules, policies, 
and the instant Order.
    34. It is further ordered that CTIA and PCIA shall submit to the 
Wireless Telecommunications Bureau reports on progress in implementing 
their respective plans beginning July 31, 2007 (for the period 
beginning today, i.e., March 8, 2007, and ending on June 30, 2007), and 
every six months thereafter until the services of the clearinghouses 
are no longer needed.
    35. This action is taken under delegated authority pursuant to 
Sec. Sec.  0.131, 0.331, 27.1162, and 27.1178 of the Commission's 
rules, 47 CFR 0.131, 0.331, 27.1162 and 27.1178.

Federal Communications Commission.
Joel D. Taubenblatt,
Chief, Broadband Division, Wireless Telecommunications Bureau.
[FR Doc. E7-14872 Filed 7-31-07; 8:45 am]
BILLING CODE 6712-01-P